Christine Flowers: ACLU wrong to sue Catholic Bishops over abortion

Well, well, well (normally I’d only use two “wells” but what I’m about to tell you merits a third utterance of incredulity.)

The American Civil Liberties Union has decided to sue the U.S. Conference of Catholic Bishops because, hold your hats, the Catholic Church opposes abortion.

Shocking, I know. In fact, this earth-shattering update might just bump the “Obamacare website is still down, and Franco is still dead” news right off the front page.

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OK, I’ll try and keep the sarcasm to a minimum this week. Given the topic, though, that’s going to be about as easy as looking at a picture of Nancy Pelosi and singing “You make me feel like a natural woman ….”

(See, it’s really hard.)

You and I have been having a running discussion over the past few weeks about the intersection of religion and the state, battling back and forth about whose rights end (or begin) at which particular bivouac. I am not insensitive to the arguments from some reasonable readers who warn about the slippery slope created by too much accommodation for religion. They waive the specter of Sharia law before me, and take a sudden interest in the Jehovah’s Witness School of Medical Avoidance.

There is some legitimacy to those preoccupations, although I have a hard time analogizing what happens to a woman under Islamic law and telling her she needs to buy her own birth control. Not exactly “tomato/to-MAH-to,” if you get my drift.

Well (and well, and well) we turned a corner this week. The ACLU filed suit against the Catholic church with a complaint that essentially says “your morals stink.” While the government hasn’t joined in as an amicus yet, my legal colleagues on the far left have the sympathetic ear of the Department of Justice on all things religious, so don’t be surprised if we have Eric Holder and crew jumping on the legal bandwagon.

Before I get into the theoretical thicket, let’s be clear on the facts. In 2010, a Michigan woman named Tamesha Means was taken to a Catholic hospital in Muskegon when, at 18 weeks into her pregnancy, her water broke. Over a period of several hours during which she made at least two return visits, Means wasn’t told that the safest medical procedure for her would be to have an abortion. This is because the hospital was following what it believed to be the directives of the Catholic Conference of Bishops that prohibit abortion even in cases where the mother’s health is in danger.

Reading the facts of the case, you have sympathy for the mother. You also wonder why the hospital didn’t refer her to another institution that would have performed the abortion. If I were the administrator of that hospital, I’d be looking for a very good attorney to cover my assets. This is especially so since the directives actually do permit abortion if there is no other way to save the life of the mother suffering from a “grave illness.”

But guess what? The hospital doesn’t need to worry about defending itself in a court of law. That’s because the ACLU has decided to go after the big game, the guys in the miters. In a normal case of alleged negligence, you target the institution or person that actually committed the negligent act. In this case, based on these facts, I think a first-year law student could make a fairly salient argument that not telling a pregnant woman in distress that she has the abortion option … just not at that institution … is a violation of informed consent. Get a sympathetic jury filled with pregnant women, and you might get a favorable verdict.

But our card-carrying crusaders deliberately refused to name the hospital as a defendant. They are not really filing a lawsuit here. They are sending a message, attached to a flaming arrow, directed at the heart of the Roman Catholic Church in America. And the message is this:

We don’t care that your religion looks at abortion as murder, bishops. We don’t care that your institutions are protected from having to provide abortions by the Constitution, the Restoration of Religious Freedom Act and the Hyde Amendment. We want every woman in America, pregnant or almost, to have the right to shove those sanctimonious religious principles right back into your misogynistic faces.

There is no question that this is what the ACLU is doing. They have basically admitted it. Here is how the lawsuit is described on the group’s website:

“A pregnant woman who goes to the hospital seeking medical care has the right to expect that the hospital’s first priority will be to provide her appropriate care. Medical decisions should not be hamstrung by religious directives.”

“Religious directives” is simply another way of saying “principles under which a Catholic institution must operate in order to remain true to its mission and identity.” This is not a question of administrative gobbledygook. The bishops issue their directives to provide theological guidance for secular activities, so that those who service the community can be consistent with the traditions of the church.

This, of course, is very unpopular in a secular society. We have a problem accepting the fact that sometimes, people do not operate in a spiritual vacuum. Like the ACLU, we believe that when religious principle comes in conflict with secular necessity (medical or otherwise) faith must yield to that secular imperative.

This lawsuit represents an unprecedented assault on religious freedom. It is the modern day equivalent of Martin Luther, standing in front of the church and pinning his thesis to the wall. Only this time, the wall is in a Michigan courtroom.

Christine Flowers is an attorney and Delaware County resident. Her column appears every Sunday. Email her at cflowers1961@gmail.com.